Bar Council Warns of Legal Issues with BSB’s Proposed Proactive Equality Duty.
The Bar Council has raised concerns about the Bar Standards Board’s (BSB) proposed proactive equality duty, warning it could lead to legal disputes with barristers and may not be lawful. They cautioned that the change might result in “virtue signalling” rather than effectively promoting diversity and inclusion within the Bar.
Additionally, the Bar Council highlighted that the BSB has not provided sufficient justification for such a significant shift in the equality, diversity, and inclusion (EDI) regulatory framework. The proposal seeks to replace the current core duty (CD) 8, which prohibits unlawful discrimination, with an obligation to actively promote EDI in the delivery of legal services.
Since the consultation’s release, the response has been largely negative. In its official response, the Bar Council stated that the BSB’s approach “lacks the clarity needed for strong, effective, and enforceable regulation.” They also expressed concern that the proposals could lead to prolonged disputes and litigation between the regulator and barristers.
“It remains unclear whom the BSB would sanction for failures to comply with proposed new equality rules – an individual barrister, or every member of a chambers. The position of employed barristers is also unclear.”
The Bar Council expressed that the consultation did not adequately acknowledge the advancements in equality, diversity, and inclusion (EDI) that have been made at the Bar in recent years. While they agree that further efforts are necessary, they are worried that the suggested regulations could impede progress in this crucial area.
They noted that the existing rules could use some revision, particularly in terms of strengthening the role of equality and diversity officers (EDOs) within chambers and improving the enforcement of these rules. However, they pointed out that the Bar Standards Board (BSB) has not demonstrated any shortcomings in the current regulatory framework.
Additionally, the Bar Council argued that the regulator has not provided evidence to support that the proposed changes will achieve their intended objectives.
They also pointed out that the new CD8 does not comply with the Legal Services Act 2007, which requires regulatory activities to be proportionate, transparent, and in line with other relevant laws.
“We believe that an obligation on barristers to ‘advance’ the ill-defined and politically contested concept of EDI is likely to result in breaches of the Human Rights Act 1998 by reason of the limitations it would impose on barristers’ freedom of expression and, worse, the pressure it would impose on barristers to advocate for contested political positions.”
The situation could potentially lead to the BSB violating its responsibilities under the Equality Act 2010 by discriminating against barristers based on beliefs that do not align with the BSB’s stance on equality, diversity, and inclusion (EDI).
The Bar Council stated that the new CD8 lacked “clarity” regarding the expectations for barristers and the specifics of compliance, making effective enforcement challenging.
There were also concerns about the potential impact on barristers’ practices. While the BSB has claimed it will not interfere with the cab-rank rule, it remains “entirely unclear” how, or to what extent, this new core duty will be prioritized over other non-core rules of conduct and practice.
“It is at least possible that barristers will feel under pressure to act in ways which may not serve their clients’ best interests. By way of example, a barrister may feel compelled to use junior barristers who will provide a more diverse team irrespective of relative skills or other relevant attributes, and irrespective of client preferences.”
It was quite foreseeable that barristers involved in contentious cases—particularly those known for advocating gender-critical feminist views—would face accusations of violating the new CD8 due to their “non-inclusionary” public stance and comments related to their cases.
While the Bar Council supported some of the BSB’s modifications to the equality regulations, it disagreed with certain proposals, such as mandating chambers to implement a policy for distributing unassigned work.
This was just one element of promoting equitable access to and distribution of work within chambers. The Bar Council recommended that the BSB focus on a broader objective of “fair work distribution.”
Additionally, the collection of data on work and earnings distribution should be integrated into chambers’ efforts to create “high-quality management information” for internal use and discussion.
The Bar Council also opposed the proposed elimination of Equality and Diversity Officers (EDOs), arguing that removing this role would hinder individual accountability for EDI within chambers, potentially leading to inaction.
The BSB should enhance the role, authority, and capacity of EDOs within chambers.
Furthermore, the Bar Council was against the removal of mandatory EDI training.
Chair Sam Townend commented: “If the BSB’s proposals were enacted and subject to legal challenge this could become a lengthy and costly distraction from the essential work of improving equality, diversity and inclusion across the Bar.
“We ask the BSB to rethink these proposals and work with the Bar Council and others to ensure that we have an effective regulatory framework and the necessary guidance to help the Bar comply.”
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